The Supreme Court, in a significant decision has observed that continuing unlawful activity with the objective of gaining advantages other than economic or pecuniary is also an "organised crime" under Maharashtra Control of Organised Crime Act, 1999.
The Division Bench comprising of Justice Dinesh Maheshwari and Justice Aniruddha Bose while adjudicating upon an appeal added that the expression 'other advantage' cannot be read in a restrictive manner and is required to be given its full effect.
Facts of the Case
The appellants appraoched High Court against ADG's action under Section 23(2) of the MCOCA sanctioning prosecution of the appellant with five other accused persons. The High Court refused the challenge with major observation that there could be advantage to a person committing a crime which may not be directly leading to pecuniary advantage or benefit but could be of getting a strong hold or supremacy in the society or even in the syndicate itself.
It was contended that in order to invoke MCOCA, a minimum of two charge-sheets are required to have been filed with twin allegations, i.e., of a) violence and b) the object being of gaining pecuniary benefit or other similar benefit. The prosecution cannot rely upon the cases where the allegations only relate to violence but not to the object of gaining pecuniary or other benefit.
Submissions of Counsel for the Appellant
The Counsel for the appellant has submitted that looking to the drastic and serious consequences, this Court has clearly provided that the provisions of MCOCA have to be strictly construed by the Courts; and the authorities concerned must strictly adhere to the same (State of Maharashtra & Ors Vs. Lalit Somdatta Nagpal & Anr, 2007 Latest Caselaw 132 SC)
He further submitted that by virtue of Section 2(1)(d) read with Sections 2(1)(e) and 2(1)(f) of MCOCA, to invoke its provisions, a minimum of two charge-sheets are required to have been filed with twin allegations, i.e., of a) violence and b) the object being of gaining pecuniary benefit or other similar benefit. The learned counsel would submit that in view of these twin requirements, the prosecution cannot rely upon the cases where the allegations only relate to violence but not to the object of gaining pecuniary or other benefit. (Ranjitsing Brahmajeetsing Sharma Vs. State of Maharashtra & ANR, 2005 Latest Caselaw 225 SC)
According to the learned counsel, there being no such element of ‘other advantage’ and these words having been used in an arbitrary and formal manner, the prosecution is not entitled to rely upon the same. It has also been contended that, in fact, the plea of ‘other advantage’, as taken before this Court, is rather an afterthought and is of an attempt at improvement over the reasons recorded in the sanction order. (Mohinder Singh Gill & ANR Vs. The Chief Election Commissioner, New Delhi & Ors, 1977 Latest Caselaw 227 SC)
He also submitted that any order having drastic consequences like those of application of MCOCA, if proceeding on the basis of irrelevant material, while ignoring the relevant considerations, cannot be approved. (KHAJA BILAL AHMED vs. STATE OF TELANGANA, 2019 Latest Caselaw 1293 SC)
Submissions of Counsel for the Respondent
The Counsel emphatically argued that the appellant is not entitled for any relief from this Court under Article 136 of the Constitution of India in view of the fact that he has been declared an absconder under Section 82 CrPC read with Section 20(3) MCOCA.
He further contended that the arguments about the appellant not being involved in the crime referable for invocation of MCOCA are not correct and the suggested interpretation on behalf of the appellant of the expression ‘other advantage’ is also not correct and submitted that crimes of bodily offence could be the crimes committed with an intention to establish supremacy and which could lead to gains other than pecuniary benefit or advantage.
He averred that the confessional statement could definitely be considered when granting sanction under Section 23(2) of MCOCA .(State of Maharashtra Vs. Kamal Ahmed Mohammed Vakil Ansari & Ors., 2013 Latest Caselaw 198 SC)
He also submitted that when the material placed before the sanctioning authority reveals presence of credible information regarding commission of an offence or organised crime, the same could always be relied upon. (Kavitha Lankesh Vs. State of Karnataka, 2021 Latest Caselaw 502 SC)
He argued that the validity of the sanction could always be determined by the Trial Court during the course of trial where the sanctioning authority could be examined with an opportunity of cross-examination to the accused.
Supreme Court's Analysis
The Court after looking into the relevant provisions, contended that this enactment is for making special provisions for dealing with the menace of organised crime causing serious threat to the society. The enactment makes stringent provisions with several extraordinary measures but, the peculiar nature of the mischief sought to be tackled, i.e., of organised crime, has obviously led to such extraordinary measures, particularly when the existing legal framework was found to be rather inadequate to control the menace, the Curt added.
From the submissions, the Court construed that the legal question for it to settle was as to what are the connotations of ‘strict construction’ by the Courts and ‘strict adherence' by the authorities in the context of an enactment like MCOCA?
Rule of strict construction cannot be applied in an impracticable manner
The Court noted that as far as the applicability of the rule of strict construction qua MCOCA is concerned, it being a special penal statute, this much is clear that no one is to be made subject to this law by implication or by presumption; and all doubts concerning its application would, ordinarily, be resolved in favour of the accused. However, the rule of strict construction cannot be applied in an impracticable manner so as to render the statute itself nugatory. In other words, the rule of strict construction of a penal statute or a special penal statute is not intended to put all the provisions in such a tight iron cast that they become practically unworkable, and thereby, the entire purpose of the law is defeated. Balram Kumawat Vs. Union of India & Ors, 2003 Latest Caselaw 413 SC
Rule of strict adherence cannot be stretched beyond common sense
The Court further noted that strict adherence by the authorities concerned to the requirements of MCOCA also cannot be stretched beyond common sense and practical requirements in terms of the letter and spirit of the statute. (Kavitha Lankesh Vs. State of Karnataka, 2021 Latest Caselaw 502 SC)
Actual use of violence not always a sine qua non for Organised Crime
The Court stated that clause (e) of Section 2(1) of MCOCA makes it clear that ‘organised crime’ means any unlawful activity by an individual singly or jointly, either as a member of organised crime syndicate or on behalf of such syndicate, by use of violence or threat of violence or intimidation or coercion or other unlawful means.
Actual use of violence is not always a sine qua non for an activity falling within the mischief of organised crime, when undertaken by an individual singly or jointly as part of organised crime syndicate or on behalf of such syndicate. Threat of violence or even intimidation or even coercion would fall within the mischief. This apart, use of other unlawful means would also fall within the same mischief, the Court added.
The Court accordingly upheld the Bombay High Court's decision and dismissed the appeal.
Case Title: ABHISHEK Versus STATE OF MAHARASHTRA & ORS.
Case Details: CRIMINAL APPEAL NO. 869 OF 2022
Coram: Justice Dinesh Maheshwari and Justice Aniruddha Bose
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